In Fall 2013 we told you the story of an Ohio woman, Sarah, who desperately needed a kidney transplant, her brother was a perfect match and agreed to donate, but the hospital -- University of Toledo Medical Center -- accidentally threw away the brother's kidney during the transplant procedure. The hospital apologized and worked hard to find a new kidney and covered all expenses, and a new kidney was eventually found, but, apparently, not as good a match as the brother's kidney. The family wanted more -- apparently money -- and the hospital balked, so the family sued and the hospital moved to have the lawsuit dismissed saying they didn't breach the standard of care. Original e-newsletter is below. Well, update for you...the hospital settled last year for $650K, which are the limits in Ohio for such cases.

This is a story about hitting the finish line with apology and disclosure. You have to be ready to hit the finish line with these cases, which means you need to have your leadership, claims team, and counsel (in-house or outside counsel) philosophically aligned and ready to be pro-active especially with fair, upfront compensation for cases of true medical error. It's not enough to say you are "sorry." You have to show it and mean it, which often means identifying the mistake, discussing how the mistake will be fixed and possibly including the patient/family in that fix, and then fulfilling the emotional and economic needs of the patient/family. Some risk managers are now asking patients/families what they need and then letting the family talk. Often the demands range from reasonable to too modest, in which case the hospital/insurer has to suggest things so the final settlements will be considered fair and reasonable by outsiders.

I wrote this below in Fall 2013: How different would this case be portrayed had the University of Toledo Medical Center said sorry, found a new kidney, offered the family $500K, and provided the opportunity for the family to be involved in quality improvement at the hospital? If the family had still sued, the family -- not the hospital -- would have appeared to be greedy and unreasonable. But that was not the case, apparently no such monetary offer was made, the family sued, and untold legal bills were racked up while the hospital's reputation was crushed in the national and international media. How completely stupid.

Let's this be a lesson for everyone. There are still people in healthcare and insurance who think saying "sorry" absolves them of their financial responsibilities. That's not how that game is played. Here is how the game is played: Being accountable and taking care of your financial responsibilities in an ethical and expedited fashion will reduce litigation and other forms of revenge while improving patient safety which will lead to significant savings for your organization.

Disclosure starts with your front-line staff. To help your staff understand their role in the disclosure process, we've introduced “Pocket Notes.” With Pocket Notes, your front-line staff will learn how to empathize and stay connected post-event without prematurely admitting fault. To order your copies of Pocket Notes, visit this link.

To see the story about the $650K settlement with University of Toledo Medical Center, visit this link.

Sincerely,

- Doug

Doug Wojcieszak, Founder, Sorry Works!

Original Fall 2013 e-newsletter

Last year (2012) Sarah Fudacz, age 24, desperately needed a kidney transplant, and her younger brother, Paul, age 20, turned out to be a perfect match. One hitch: The hospital threw away Paul's kidney before they could transplant it into Sarah.

The hospital apologized and worked hard to find Sarah a new kidney a few months later. Sarah and her brother are now physically doing fine, although, according to the family and their attorney, the donated kidney wasn't as good a match her brother's kidney. Moreover, the family is absolutely furious. And they are suing.

Another wrinkle to the story is one nurse involved in the operation resigned, and another was fired...and the nurse that was dismissed is suing the hospital.

According to an article published by the Toledo Blade, the hospital's Dr. Jeffrey Gold, UTMC chancellor and executive vice president for health affairs, released a statement Friday.

"The university continues to express the sorrow that we feel that this unfortunate incident occurred. We apologize sincerely. We have done our best to provide many remedies to help those affected move forward," it said. "All of us at UTMC are sympathetic and sorry that this has happened....While the legal realities of this situation are complex and ongoing, we have worked hard to learn from this incident and have spread these lessons widely to try to make hospitals and transplant programs safer across the country."

According to the Blade article and a story by Good Morning America, the hospital was initially very open with the family and accommodating, including the assistance finding another kidney. But, things broke down when the Ohio Attorney General's Office, which is representing this university hospital, thought the family's additional requests for assistance were unreasonable. Now the AG's office is trying to dismiss a suit by the family by claiming the hospital was not negligent and seeking to recover costs.

Lots of lessons here for the disclosure movement:

1) When designing a disclosure program, make sure to have all the folks on your side (medical staff, leadership, outside insurers, defense counsel, etc) on the same page. We've told folks time and time again to feel out your defense counsel and insurers long before an event happens, and make changes, if necessary. In this case, perhaps the hospital should have discussed their disclosure program with the AG's office long before the situation with the Fudacz family.

2) This story also hammers home the importance of the compensation piece in disclosure. When trying to resolve a case, all options need to be on the table, and you need to have the ability to proactively address financial as well as emotional needs of all stakeholders. For many people, money is how they keep count...and your disclosure program needs to reflect this reality. However, when you diminish the anger and need for revenge, monetary figures usually decrease. Moreover, there will be times money won't be an issue (for whatever reason), but you need to be able to handle the compensation piece or your disclosure program can be made to look hollow and meaningless. I would be curious to know what the family's additional demands were that the AG's office deemed unreasonable. At Sorry Works!, we have taught folks that disclosure does not turn you into an ATM machine, but this case feels funny. Instead of arguing the case on damages, the AG's office is apparently trying to deny negligence and also wants to recover costs. It appears there is a disconnect on the compensation piece. Moreover, the family did not want to litigate, according to their attorney. You have to have the compensation piece in place or your disclosure program will look like a white-wash job. How different would this story be if it read, "Hospital throws away kidney, apologizes, finds new kidney, offers $500K or a $1M, but family still sues?"

3) Think of the PR implications. Here's one story where Ms. Fudacz says the hospital "threw away her life." Ouch! This story has been splattered across the country and around the world, and denying negligence makes this hospital look even worse. Again, this is why it is so important in a disclosure environment to be on the same page with defense counsel, and the time to get on the same page is long before an event happens. Think how much business this is costing the hospital. The next time your CFO says we can't afford to implement disclosure, or the CEO says "we're too busy right now," drop this story on their desk.

4) Let's not forget about the second victims...one nurse resigned, and another was fired and is now suing the hospital. Good disclosure programs take care of staff.

Finally, Ms Fudacz and her brother are actually interested in medical careers, and this situation has only heightened their desire to be clinicians. Let's hope they become healthcare professionals because they are both in a unique situation to do a lot of good. Talk about a powerful story!